U.S. District Judge Philip Gutierrez opened the trial of alleged Xbox hacker Matthew Crippen with a bang yesterday, berating the prosecution for calling government witnesses who admitted to committing crimes but asking these crimes to be kept secret from the jury; for their theories relating to fair use, and for a "laundry list" of other complaints. The public dressing down went on so long that it actually drew a crowd, and it ended with prosecutor Allen Chiu saying, "I apologize to the court," whereupon the trial was suspended.
Among the judge's host of complaints against the government was his alarm that prosecutors would put on two witnesses who may have broken the law.
One is Entertainment Software Association investigator Tony Rosario, who secretly video-recorded defendant Matthew Crippen allegedly performing the Xbox mod in Crippen's Los Angeles suburban house. The defense argues that making the recording violates California privacy law. The other witness is Microsoft security employee Ken McGrail, who analyzed the two consoles Crippen allegedly altered. McGrail admitted that he himself had modded Xboxes in college.